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Planning Commission (View All)

Planning Commission Minutes

Thursday, September 10, 2015

The regular meeting of the Planning Commission was called to order at 5:30 PM in the City Hall Council Chambers on the above date with the following members and staff in attendance:
Commissioners Present
David McFadden, Chair
Patrick Miranda, Vice Chair
Tim D’Alessandro
David Culbertson (left at 7:00 p.m.)
Norman Fincher
Joe Foley
Bill Mansfield
Mark McKechnie
Jared Pulver      
Staff Present
Jim Huber, Planning Director
Kelly Akin, Principal Planner
John Adam, Principal Planner
Kevin McConnell, Deputy City Attorney
Alex Georgevitch, City Engineer
Greg Kleinberg, Fire Marshal
Debbie Strigle, Recording Secretary
Aaron Harris, Planner II
Jennifer Jones, Planner III
10.          Roll Call
20.          Consent Calendar/Written Communications.
20.1 ZC-15-085 Final Order of a request for a change of zone from SFR-6 (Single-Family Residential, 6 dwelling units per gross acre) to SFR-10 (Single-Family Residential, 10 dwelling units per gross acre) on three parcels, consisting of an approximately 5.31 total gross acre, generally located north of Diamond Street, east of Lillian Street and approximately 390 feet south of Garfield Street.  (Dennis Sullivan, Applicant; Scott Sinner Consulting, Inc., Agent).
20.2 LDS-15-091 Final Order of a request for tentative plat approval of an 18-lot residential subdivision located on 4.54 gross acres within a SFR-4 Zone District. The subject site is located to the east and to the south of the existing terminus of Cadet Drive, approximately 150 feet east of the Cadet Drive intersection with Admiral Way. (Van Wey Homes, LLC, Applicant; Farber Surveying, Agent).
Motion: Adopt the consent calendar.
Moved by: Vice Chair Miranda                                                   Seconded by: Commissioner Pulver
Voice Vote: Motion passed, 9–0.
30.         Minutes
30.1.      The minutes for August 27, 2015, were approved as submitted.
40.         Oral and Written Requests and Communications. None.
Kevin McConnell, Deputy City Attorney, read the Quasi-Judicial Statement.
50.          Public Hearings—Continuance Request
50.1 ZC-15-019 Consideration of a request for a zone change from SFR-4 (Single Family Residential, four dwelling units per gross acre) to MFR-30 (Multiple-Family Residential, 30 dwelling units per gross acre) on approximately 6.70 acres located at the southeast corner of Roberts Road and North Keene Way Drive. (Foursquare Gospel Church, Applicant; Richard Stevens & Associates, Agent).
Jennifer Jones, Planner III, stated the applicant is requesting additional time in order to complete analysis of the sanitary sewer capacity.  They have requested to continue this item to the October 8, 2015, Planning Commission meeting.
Motion: Continue ZC-15-019, as per the applicants request, to the October 8, 2015, Planning Commission meeting.
Moved by: Vice Chair Miranda                                                                   Seconded by: Commissioner Pulver
Roll Call Vote: Motion passed, 9–0.
50.2 DCA-15-104 Consideration of Municipal Code amendments to regulate marijuana-related businesses within the City of Medford (City of Medford, Applicant).
John Adam, Principal Planner, stated that the item before the Planning Commission was a proposal to adopt regulations to control the negative externalities from marijuana-related businesses.  The criteria that apply to code amendments are in Medford Municipal Code, Section 10.184 (2).  Mr. Adam read the applicable criteria.
Commissioner McKechnie asked that in some of the preliminary findings there were concerns with the odor. Is it not in the Code amendments?  Mr. Adam stated that on page 50 of the agenda packet Section 10.839(2) it states “No marijuana-related business shall cause or allow an offensive odor of marijuana or marijuana products to emanate from a structure or from any property.”
Commissioner McKechnie asked if marijuana and marijuana products may not be displayed in a manner that is externally visible to the public a state requirement?  Kevin McConnell, Deputy City Attorney replied that he believes it is.  It is part of House Bill 3400, but it would not be a problem to have a redundant requirement in the City’s code.
Commissioner McKechnie stated that he thinks one of the comments from the City Council was that any marijuana use be a conditional use and staff opposed that.  Personally he thinks that since this is a brand new growth industry that it would not be a bad idea for the Commission to see the new uses, at least for the first year, if only to see what the overall impacts are. It can be changed later. The only concern he has with a conditional use permit is that it somehow bypasses Site Plan and Architectural review.  It seems to him they should be doing both. Mr. Adam responded that any new use goes through Site Plan and Architectural review if it meets certain triggers. If on the other hand it was a business that wanted to open in an existing structure they would not have to do that now. Does Commissioner McKechnie want that to be the case if it is an existing structure?
Commissioner McKechnie replied no. If it is going into an existing structure then obviously not. If it is a brand new building then he thinks the architecture, site plan and landscaping should be reviewed. A few weeks ago the Planning Commission looked at a conditional use permit for the School District which was required. Because it was required as a conditional use it was able to bypass the Site Plan and Architectural Commission but the Planning Commission was not allowed to look at it as a Site Plan and Architectural review. It is his opinion that the Planning Commission should be looking at any kind of marijuana-related activity just as a conditional use permit to understand the process rather than having it a staff function.
Commission Pulver stated that he thought with the conditional use process the Planning Commission had the ability to refer it to the Site Plan and Architectural Commission for review, but there were usually concerns about meeting the 120-day limit imposed in State law.
Commissioner Mansfield stated that the scope of the Site Plan and Architectural Commission hearing does not have to do with whether or not it is an unreasonable detriment to the neighboring properties. It has to do with whether it is a good building, properly placed, and so forth. Referring it to the Site Plan and Architectural Commission does not do the job; each marijuana activity should be subject to conditional use permit.  He considers the marijuana business to be harmful to the community. He is going to vote any way he can to make it more difficult. He is bothered by the idea purveying this kind of substance is going to be helpful to our economy. He is resentful of that concept.  He appreciates that staff had a need to try to find something to justify it. He opposes that justification even though he respects staff.
Mr. McConnell noted that Section 10.290 the Site Plan and Architectural review criteria states that for an application to be approved the proposed development has to show it is compatible with the uses and development that exists on adjacent land.
Chair McFadden stated that the Planning Commission review can include some Site Plan and Architectural-related items in terms of how it affects properties offsite of the property being developed. 
Mr. Adam stated that by making it a conditional use permit the Planning Commission is unlikely to find that the development proposal is in the public interest.
Commissioner Pulver stated that from his reading of the staff report it indicates that what is being presented provides adequate mitigating controls. With the conditional use permit criteria it would have a hard time passing Criterion 1, but then the challenge would be Criterion 2 and create enough mitigating controls that might make it acceptable where it is proposed to be. He disagrees that it might be impossible to get a conditional use permit for various uses.
Commissioner Pulver asked if the odor concern is enforceable? Mr. McConnell affirmed that it can be enforced. The City has enforced similar nuisance issues such as unlawful accumulation of junk. Those properties have been abated. When the property owner would not do it the City requested a warrant from the Municipal Court judge and followed the process procedures and the City actually abated those nuisances through a lien on the property.
Commissioner Pulver asked if a residence in a subdivision is surrounded by eight homes and three have marijuana plants how does one determine which one of the three is the offender? Mr. McConnell reported that question has come up before. It would be the City’s burden. They would have to prove by preponderance of the evidence that the person cited owned the plants that were causing the odor that has caused a nuisance to a neighbor.
Chair McFadden stated that to his understanding there remains a limit on number of plants growing and those plants had to be indoors. Mr. McConnell stated that is his understanding but it is not effective until November 1, 2015 in residential areas. Mr. Adam reported that the item before the Commission deals only with commercial zoned land. Residential grows would not be affected under these rules.
Commissioner Foley stated that he thought State law limited the number of plants for commercial grow. Wasn’t there a 100 plant limit indoor? Mr. McConnell reported that there is a canopy limitation that applies to City limits. He does not have the exact number in front of him. There is State law that has limitations on that.
The public hearing was opened and there being no testimony, the public hearing was closed.
Commissioner Foley asked if it was appropriate to put a sunset clause on the conditional use permit process since it is a new industry and they do not know enough about it? Mr. McConnell stated that it would be a possible line they could explore.
Chair McFadden stated that his concern is that until there is more of a track record it is hard to know what the issues are going to be.
Commissioner D’Alessandro commented that they are not locked in and if the Planning Commission forwarded this to the City Council and City Council adopted it we could come back at any point and make necessary changes based on experience and something problematic. Mr. Adam confirmed the comment. If there was something they did not anticipate they can always put in a fix after the fact. Mr. McConnell reported that House Bill 3400 gave municipalities the ability to impose reasonable time place and manner restrictions. If there are problems that come along the City can take another look at it and tweak the amendment as necessary.
Commissioner D’Alessandro asked Mr. McConnell that with House Bill 3400 and what is proposed in staff’s recommendation is there adequate information to deal with future problems? Mr. McConnell stated that with the State law all marijuana will be tested by the State license laboratories. Marijuana handlers will be licensed by the OLCC. The laboratories will be licensed. With the power of cities to impose time place and manner regulations you will not see what happened in southern California.
Commissioner Foley asked that if a business meets the criteria that is being presented tonight and the City determines in the future that there is a criteria that should have been in place but is not, you put that criteria in place, the business that existed is grandfathered, is that correct? Mr. McConnell stated that they are not grandfathered. A business has to get a business license yearly.
Commissioner Mansfield stated that the City’s business licenses have no regulatory functions other than being a vetting system to make sure people are within their proper zoning. Mr. McConnell stated that they have to be in compliance with all provisions of the Code. He does not think there is a grandfather issue here. Commissioner Mansfield stated that he thinks there is.
Commissioner Pulver stated that it is his opinion that the focus is driven by the dispensaries and retail outlets. Processing, wholesaling and laboratory uses in theory should be harmless. They would happen in warehouses or buildings that would be contained where the odor would not be an issue.  The State law has time, place, and manner restrictions on dispensaries in terms of how close they can be to one another or schools. Personally he would like to see something of that nature for retail in place.
Commissioner Pulver asked if multiple uses, for example, processing and wholesales, on one site is adequately addressed in what is being proposed? Mr. Adam reported that he does not know if State law requires separation between the different uses. Unless there is a State requirement to keep these things separate one could conceivably have everything from production through processing and retail sales in one location, but only in the Heavy Commercial district. Putting aside whether the State has regulations on separation or not, for any given productive use one can have some onsite retail sales in industrial districts.
Mr. McConnell stated that House Bill 3400 does allow the OLCC as necessary to protect the public health and safety to require any marijuana licensee to combine their licenses into one area. It does allow OLCC to segregate those licensed businesses into separate areas.
1st Motion: The Planning Commission adopts the findings as recommended by staff and directs staff to prepare a Final Report per the staff report dated August 28, 2015, including Exhibits A through C.
Moved by: Vice Chair Miranda                                                   Seconded by: Commissioner Culbertson
Commissioner Foley stated there was an open question on page 50 of the agenda packet Section 10.839(2) to include “from a unit therein.” Could he get clarification? Vice Chair Miranda stated he was recommending inclusion.
Friendly amendment made by Commissioner McKechnie: To strike the phrase on page 50 of the agenda packet Section 10.839(2) to include “from a unit therein.” Vice Chair Miranda seconded the friendly amendment.
2nd Motion: Require a conditional use permit for marijuana retailing with a two year restriction.
Moved by: Commissioner McKechnie                                    Seconded by: Commissioner Mansfield
Commissioner McKechnie stated that this is new territory and he would rather proceed a little more purposeful instead of jump in and then say “wait a minute, we made a mistake.” We have no idea what kind of parking requirements will be needed for this. 
Chair McFadden replied that zoning controls the parking. What he sees is that if this has a conditional use permit they will have to deal with the four issues under Section 10.839(A) General Provisions. Does the Commission have to define the issues that will trigger a conditional use permit, if they are going to include that?
Vice Chair Miranda stated that they are not precluded from coming in later and making additional restrictions, conditions, changing the verbiage or altering it in such a way to mitigate or eliminate a potential issue. His concern is that if they go into it with so many restrictions that it makes it almost self-elimination. He does not know if they are doing the City or themselves a service.
Kelly Akin, Principal Planner, addressed Chair McFadden’s question stating that the conditional use criteria would have to be met. In addition to the criteria, if the Commission cannot find that it meets the first criterion—that there will be no significant adverse impact—which they may be able to, then there are eleven items that can be conditioned and additional findings for mitigation of impact that will be needed to be applied. That is something for them to consider unless they want to come up with some specific language related to this specific use.
Commissioner McKechnie asked what uses already require conditional use permits. Ms. Akin replied that most of the conditional uses are institutional uses in residential zones, churches, schools, and so forth. There are not a lot of conditional uses in commercial or industrial zones. 
Commissioner Culbertson commended staff because they have taken an industry that is coming down quickly and encapsulating it into the different industries that they may already have in the valley and mesh it with what they already have. It puts pretty good restrictions in place. Adding a conditional use permit requirement does not seem useful to him. The Commission can try to stonewall marijuana all its wants, but at some point they are going to start running afoul of State law. It is better to see the first test come in, find out how does it fit within the matrix they have created, where are the gaps, and then plug those holes.
Commissioner Culbertson stated that there has been a motion, a second, a friendly amendment, another motion and second, they need to recap where they are at, because he is lost.
Chair McFadden replied there is a motion to recommend approval of this amendment to the City Council. There was a favorable friendly amendment to strike the phrase “from a unit therein” from Section 10.839 (2).  Now they are at a motion to require a conditional use permit for marijuana retailing with a two-year sunset provision.
Commissioner Mansfield stated that unless there is further debate on the merits of Commissioner McKechnie’s motion to amend, it would seem appropriate for the Planning Commission to vote on the motion to amend.
Roll Call Vote for 2nd Motion: Motion passed, 5–4, with Culbertson, D’Alessandro, Miranda, and McFadden voting no. The conditional use provision for retail uses is added to the primary motion.
Roll Call Vote for 1st Motion: Motion passed, 6–3, with Fincher, Mansfield, and Miranda voting no.
50.3 LDP-15-092 Consideration of a request for a partition to create two parcels from 1.82 gross acres located approximately 250 feet north of O’Hare Parkway between Heathrow Way and Biddle Road, within the I-L/PD (Light Industrial/Planned Unit Development) zoning district. (Frank Pulver, Applicant; Hoffbuhr & Associates, Inc., Agent)
Chair McFadden inquired whether any Commissioners have a conflict of interest or ex parte communication they would like to disclose. Commissioner Pulver stated that he needs to recuse himself from this agenda item.  Commissioner McKechnie state that he does a fair amount of work with Frank Pulver but it will not affect his decision on this project and has no interest in this business as far as he knows.
Chair McFadden inquired whether anyone in attendance wishes to question the Commission as to conflicts of interest or ex-parte contacts. None were disclosed.
Jennifer Jones, Planner III, read the land division criteria and gave a staff report.
Commissioner McKechnie asked if the shared access means the financial institution scheduled for the front parcel on Heathrow will not have a driveway on Heathrow?  Ms. Jones reported that both parcels will be accessed via the shared access drive.  There will not be an additional driveway.
Chair McFadden stated that on Planned Unit Developments 20% of the Planned Unit Development can be used as other uses other than industrial zones.  Does Ms. Jones know in this development what the breakdown is between commercial properties and industrial properties?  Ms. Akin stated that almost all the uses that have been constructed there are permitted because it is aisle zoning.  So mostly they are office uses which are permitted.
The public hearing was opened.
a. Darrell Huck, Hoffbuhr & Associates, Inc., 880 Golf View Drive, Suite 201, Medford, Oregon, 97501.  Mr. Huck reported that this is a pretty straight forward project.  He does not have any comments to add to what was presented.
The public hearing was closed.
Motion: The Planning Commission adopts the findings as recommended by staff and directs staff to prepare a Final Order for approval of LDP-15-092 per the staff report dated August 18, 2015, including Exhibits A through H.
Moved by: Commissioner McKechnie                                                    Seconded by: Commissioner Fincher
Roll Call Vote: Motion passed, 8–0-1, with Commissioner Pulver recusing himself.
50.4 LDS-15-073 / E-15-099 Consideration of a request for a tentative plat approval for Spring Creek Subdivision, a 9-lot residential subdivision located on the southwest corner of North Ross Lane and Finley Lane and an Exception to the required right-of-way dedication for a 1.99 acre property zoned SFR-6 (Single Family Residential – 6 dwelling units per gross acre). (Tony and Tory Nieto, Applicant; Farber Surveying, Agent)
Chair McFadden inquired whether any Commissioners have a conflict of interest or ex parte communication they would like to disclose. None were disclosed.
Chair McFadden inquired whether anyone in attendance wishes to question the Commission as to conflicts of interest or ex-parte contacts. None were disclosed.
Kelly Akin, Principal Planner, stated that the land division criteria had been read at the previous application.  Ms. Akin read the exception criteria and gave a staff report.  Ms. Akin reported that Public Works provided a revised report indicating that they had no objections to the reduction of the right-of-way.  The updated report was included in the agenda packet but the Planning Departments staff report did not reflect that.  The staff report will need to reflect the correct Public Works report dated September 2, 2015 and identify it as Exhibit H not Exhibit H-1.
Commissioner McKechnie asked if there were any future planned right-of-way on the south side of this development?  Would there be a street in there somewhere?  Ms. Akin replied no.  The right-of-way is further to the south.
Commissioner McKechnie asked if the one access easement services the three lots in the back?  Ms. Akin replied yes.  Does Lot 8 need that to meet some area requirements?  Technically, to him it looks like it is a four lot access easement.  Ms. Akin stated no.  It can only serve three.  Commissioner McKechnie stated that by Code it can only serve three but it seems to him it ought to be platted to service the three lots rather than being a part of Lot 8.  Ms. Akin asked if that should be included in Lot 5?  Mr. McKechnie stated the entire thing should be a separate lot or a separate something that is not under the control of Lot 8 but is for the benefit of Lots 4, 5 and 6.  To be clear with the Code it should be a dedicated piece or owned in common by Lots 4, 5 and 6 and not a part of Lot 8.  Ms. Akin stated that it may mean Lot 5 meeting design standards.
The public hearing was opened.
a. Herb Farber, Farber Surveying, 431 Oak Street, Central Point, Oregon, 97502.  Mr. Farber reported that he is the agent for the applicants, Tony and Tory Nieto.  It has been demonstrated that they are in compliance with all the Code criteria and elements.  They also comply with the exception criteria as necessary to reduce the right-of-way by 8 feet.  They still meet all the transportation needs and pedestrian access.  In response to the question from Commissioner McKechnie, the City of Medford has a lot depth and width requirement that is measured from the road frontage to the back of the lot.  If they make it a flag lot and make it a part of Lot 5 the depth and width is measured from Finley Lane all the way to the back of the property.  Therefore, it does not comply with standards when they do that.  That is why they have the minimum accesses that go over other people’s properties to provide legal access through a minimum access and they are not owned by the properties in the back.  The use of that easement will be restricted by deed and CC&R’s, etc. to where technically Lot 8 is not allowed to use it for access.  They will pay taxes on it.  There are a multitude of these in the City.
Commissioner McKechnie asked if Lot 8 meets the width and depth requirements if the existing building was demolished.  Mr. Farber replied that it meets the minimum square footage, lot width and depth requirements.
Chair McFadden asked Alex Georgevitch, City Engineer, if the drainage (part of Oak Creek drainage system) on the east side of Lots 4 and 9 will be left opened or can it be put underground?  Mr.  Georgevitch replied that he cannot say at this time because it is wetlands and its jurisdiction will require review by DSL.  If they can get past the regulatory requirements there is no reason why Public Works would not allow it to be piped.  The preference is to leave it open because of the water quality and detention requirements.  It works better to leave it open but it is not a requirement.
The public hearing was closed.
Motion: The Planning Commission directs staff to prepare the Final Orders for approval of LDS-15-073 and E-15-099 per the staff report dated September 3, 2015, including Exhibits A through S, with the correction indicated by staff regarding the Public Works report dated September 2, 2015, identified as Exhibit H and not Exhibit H-1.
Moved by: Vice Chair Miranda                                                   Seconded by: Commissioner D’Alessandro
Roll Call Vote: Motion passed, 9–0.
60.  Reports
60.1        Site Plan and Architectural Commission. None.
60.2        Report of the Joint Transportation Subcommittee. None.
60.3        Planning Department
Kelly Akin, Principal Planner, reported that the Planning Commission has a study session scheduled for Monday, September 14, 2015.  They will be discussing housekeeping text amendments.
There is business scheduled for the Planning Commission through October.
Last week the City Council adopted the portable storage container code amendment that the Planning Commission recommended.  They approved it as a Class “D” process changed to administrative review with notice.
Next week the City Council will continue the UGB expansion amendment.
Commission D’Alessandro stated that staff did a great job with the study session agenda packet regarding setbacks.  He would like to see comparisons showing the impacts of the setbacks versus what can be put on lots in different zoning applications.  What it does to the square footage of the home, size of the yard, those types of things.
Chair McFadden stated that in the lot coverage it might be interesting to include hard surfaces.
Ms. Akin replied that staff could potentially come up with a building envelope.  A building envelope of a single story and as it goes up how the envelope shrinks.
60.          Messages and Papers from the Chair. None.
70.          Remarks from the City Attorney. None.
80.          Propositions and Remarks from the Commission. None.
90.          Adjournment
The meeting was adjourned at 7:05 p.m. The proceedings of this meeting were digitally recorded and are filed in the City Recorder’s office.
Submitted by:
Terri L. Rozzana                                                                
Recording Secretary
David McFadden
Planning Commission Chair
Approved: September 24, 2015

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